Raguraman (Migration)

[2021] AATA 52

Raguraman (Migration) [2021] AATA 52 (11 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Suganiya Raguraman
Ms Tanvi Raguraman

CASE NUMBER:  2003100

HOME AFFAIRS REFERENCE(S):          BCC2017/4638010

MEMBER:Antonio Dronjic

DATE:11 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 – Skilled – Independent visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 11 January 2021 at 9:45am

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – bogus document submitted in support of application – birth certificate – applicant born in India to Sri Lankan father and Indian mother living in Sri Lanka – Sri Lankan birth certificate issued at birth – Indian birth certificate issued by court order when applicant an adult and submitted with application – integrity checks found Sri Lankan certificate genuine but unable to confirm genuineness of Indian certificate – confirmation of genuineness of Indian certificate and explanation for Sri Lankan certificate provided to tribunal – decision under review set aside for first applicant, no jurisdiction for second applicant

LEGISLATION

Migration Act 1958 (Cth), ss 5(1)(a), 103, 107, 109(1), 140(1)

CASE

Saleem v MRT [2004] FCA 234

SZEEM v MIMIA [2005] FMCA 27

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 February 2020 to cancel the first named applicant’s Subclass 189 – Skilled – Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with s.103 of the Act. The delegate found that, in support of her application for a Subclass 189 visa, the applicant submitted a bogus document, namely a translated copy of her Indian birth certificate issued on 20 March 2009 by Tiruchirappalli City Corporation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. On 18 February 2020, the applicant applied to this Tribunal for a review of the delegate’s visa cancellation decision. A copy of the delegate’s decision record accompanied the applicant’s application for the review.

5. On 18 December 2020, the Tribunal wrote to the applicant advising her that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 5 January 2021.

6. On 22 December 2020, the applicant’s representative provided legal submissions and additional documentary evidence in support of the application. The list of documents submitted on 22 December 2020 is attached to this decision and marked as Attachment A. The same documents were posted to the Tribunal on 4 January 2021.

7. On 29 December 2020, the applicant’s representative submitted additional documentary evidence in support of the application including the copy of the Tiruchirappalli Court Order (certified copy of the original Order together with translation by NATTI accredited translator) on the basis of which the applicant’s birth was registered at Tiruchirappalli City Corporation. The list of documents submitted on 29 December 2020 is attached to this decision and marked as Attachment B.

8. On 31 December 2020, the applicant’s representative submitted a document issued by the Municipal Administration and Water Supply Department of Tiruchirappalli City Corporation confirming the applicant’s date and place of birth.

9. The applicant appeared before the Tribunal on 5 January 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

10. The applicant is 43 years of age and a national of India. She first came to Australia as a holder of a Skilled visa Subclass 189 granted to her on 27 October 2014. Her former husband and daughter were granted the same visa as members of her family unit.

11. In India, the applicant completed primary and secondary education as well as a Bachelor of Commerce degree and a Master of Computer Applications. She gained more than eight years of relevant experience before applying for an Australian Skilled visa. Her nominated occupation was ICT Business Analyst.

12. Her parents currently live in Sri Lanka. She has two siblings, both born in Tiruchirappalli (or Trichy as referred to by the applicant), India. Her sister was born in June 1980 and holds Indian citizenship. She is married and has been living in England since 2015. The applicant’s brother was born in October 1981. He holds Sri Lankan citizenship and is also an Overseas Indian Card holder. He lives in Colombo and works at his father’s business.

13. The applicant’s parents married in 1976 or 1977. At that time, they lived in Sri Lanka. The applicant’s father holds Sri Lankan citizenship and her mother is Indian national. The applicant explained that, according to Tamil’s customs, her mother went back to her hometown Trichy in India in 1978 to give birth. The applicant did the same thing when she gave birth to her daughter in May 2010 despite living in Bangalore at that time. The rationale behind this custom is that a pregnant woman is provided better support at her family home. According to the applicant’s evidence, for the same reason, her mother returned to Trichy to give birth to both applicant’s siblings.

14. According to the applicant’s father’s declaration provided to the Tribunal, the family returned to Sri Lanka after the applicant’s birth and continued living in Colombo until 1983 when ethnic riots forced the applicant and her mother to move back to Trichy. The applicant’s father stayed in Colombo because he operated a business there and was protected by his Sri Lankan citizenship.

15. The applicant continued to live in Trichy until 2005 when she married and moved with her husband to Hyderabad and then to Bangalore. In 2008, her mother returned to Sri Lanka and has continued to live there until the present time.

16. In November 2017, the applicant divorced from her former husband, Mr Mani Raguraman. She did not inform the Department that the relationship with her husband no longer existed. The applicant and her former husband share the custody of their 11-year-old daughter who attends primary school in Australia.

17. The applicant stated in her evidence that her former husband currently lives in Australia and that they maintain minimal contact because of the shared custody of their daughter. The applicant is currently employed as a business analyst and manager. She owns a property in Australia (house where she lives with her daughter) and in India (land and apartment in Bangalore under her name). Six months ago, she started a new relationship.

18. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

20. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision and marked as Attachment C.

    Did the notice comply with the requirements in s.107?

21. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

22. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

23. It is not open to the decision-maker (including the Tribunal on review) to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1] The Tribunal is further restricted to consideration of whether there was non‑compliance in the manner particularised in the s.107 notice.[2]

    [1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004).

    [2] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).

24. The following non-compliance with s.103 of the Act was identified and particularised in the s.107 notice:

    ·On 11 July 2014, the applicant applied for a Subclass 189 visa. As part of this application, the applicant submitted a copy of her Indian birth certificate (translated version) issued on 20 March 2009 by Tiruchirappalli City Corporation, Tiruchirappalli District, Tamil Nadu, India. On 27 October 2014, the applicant, her former husband and her daughter were granted a Subclass 189 visa.

    ·On 5 June 2017, the Department received information that the visa holder was born in Colombo, Sri Lanka, and not in India, as claimed in her visa application. The Department obtained document number 2415 which purports to be an English language translation of the contents of a birth registration entry filed in the Thimbirigasyaya Divisional Secretariat, Colombo District, Sri Lanka. On 5 September 2017, the Department made enquiries with officials in Colombo, Sri Lanka, to verify the authenticity of this document. The outcome of integrity checks confirmed that birth certificate 2415 is a genuine document.

    ·In July and August 2019, the Department undertook integrity checks regarding the visa holder’s Indian birth certificate which was provided with her visa application. The Department received information from Tiruchirappalli City Corporation that when a birth within their jurisdiction is not registered within 21 days, the applicant for registration is required to attend court and obtain a Court Order to the Corporation to register the child’s birth. While this purported birth was registered based on Court Order CMP No. 5624/2007 – Judicial Magistrate III Date: 12/09/2007, the court was unable to locate this Court Order.

    ·Based on the findings that there was a valid Sri Lankan birth certificate and because the Indian court was unable to locate the Order at the time the Department made enquiries, the delegate formed a reasonable suspicion that the applicant’s Indian birth certificate purports to have been but was not validly issued by Tiruchirappalli City Corporation. The delegate found that the applicant’s birth certificate is a bogus document as defined in s.5 of the Act as it purports to have been but was not validly issued in respect of the visa holder by Tiruchirappalli City Corporation.

    ·On 2 December 2019, a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant. The applicant responded to the NOICC on 12 December 2019 and 7 January 2020. In her statutory declaration of 6 January 2020, she stated that she only become aware of the existence of the Sri Lankan birth certificate after receiving the NOICC. The applicant denied that she submitted a bogus document to the Department and provided an explanation as to how and why the Sri Lankan birth certificate was obtained by her father in July 1978. She reiterated that she was born in India and in support of this claim she submitted several statutory declarations, including declarations from her parents and neighbours who were present and assisted the applicant’s mother at the time she gave birth to the applicant at her family home.

25. A ‘bogus document’, in relation to a person, is defined in s.5(1) of the Act to mean a document that the Minister reasonably suspects is one that:

    ·purports to have been, but was not, issued to a person; or

    ·is counterfeit or has been altered by a person who does not have authority to do so; or

    ·was obtained because of a false or misleading statement, whether or not made knowingly.

26. There is no requirement, either in the terms of s.103 or in the definition of bogus document, for the document in question to be connected to a visa criterion.

27. In the s.107 notice, the delegate described the applicant’s non-compliance with s.103 in the following way:

    ·Indian birth certificate purports to have been but was not validly issued by Tiruchirappalli City Corporation; and

    ·Birth certificate is a bogus document as defined in s.5 of the Act as it purports to have been but was not validly issued in respect of the visa holder by Tiruchirappalli City Corporation.

28. There is no evidence before the Tribunal that the applicant’s birth certificate was not issued by the Tiruchirappalli City Corporation. It is clearly stated on the certificate that it was issued by the Tiruchirappalli City Corporation. The copy of the certificate contains the Corporation’s seal and the signature of the Registrar of Births and Deaths. Even the delegate in his or her decision accepted that the applicant’s birth was registered at Tiruchirappalli City Corporation based on the Court Order (CMP No. 5624/2007 – Judicial Magistrate III Date: 12 September 2007). The problem was that the relevant court was unable to locate this Order at the time the Department attempted to verify the authenticity of the applicant’s birth certificate.

29. In her evidence, the applicant stated that she engaged a lawyer in India who petitioned the relevant court and ultimately obtained a certified copy of the relevant Court Order. This document together with the translation undertaken by a NAATI accredited translator was provided to the Tribunal, together with further confirmation from Tiruchirappalli City Corporation that the applicant’s birth certificate was issued by the Registrar of Births and Deaths of Tiruchirappalli City Corporation. This letter was signed by the Public Information Officer on 29 December 2020.

30. Based on the evidence before it, the Tribunal is not satisfied that the applicant’s Indian birth certificate issued on 20 March 2009 by Tiruchirappalli City Corporation purports to be but was not issued to a person (the applicant) as defined in s.5(1)(a) of the Act. By its Order No. 5624/2007 of 12 September 2017, the Tiruchirappalli Court ordered that the applicant’s birth be registered in the Births and Deaths Register of Tiruchirappalli City Corporation.

31. There is no allegation in the s.107 notice that the applicant’s Indian birth certificate is counterfeit or has been altered by a person who does not have authority to do so or that it was obtained because of a false or misleading statement, whether or not made knowingly.

32. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 – Skilled – Independent visa.

34. The Tribunal has no jurisdiction with respect to the other applicant.

    Antonio Dronjic
    Member

    
    

    Document List – Attachment A

    1.On 22 December 2020 (and on 4 January 2021), the Tribunal received the following documents:

    ·Notice of cancellation under section 109 of the Migration Act 1958 from the Department of Home Affairs to Ms Suganiya Raguraman (13/2/2020)

    ·Republic of India passport of Suganiya Raguraman (date of issue: 9/2/2012)

    ·Republic of India passport of Suhanya Periyannan (date of issue: 7/11/2001)

    ·Republic of India passport of Suganiya Periyannan (date of issue: 21/11/2005)

    ·Passport of Suhanya Periyannan (date of issue: 21/12/1994)

    ·Notice of intention to consider cancellation under section 109 of the Migration Act 1958 from the Department of Home Affairs to Ms Suganiya Raguraman (2/12/2019), including attachments:

    oTiruchirappalli City Corporation, Tiruchirappalli District, Tamil Nadu, India translated birth certificate of P. Suganiya (date of registration: 21/9/2007)

    oSri Lankan Register of Births translated birth certificate of Periyannan Suganiya (1/2/2017)

    oEnvelope addressed to Ms Suganiya Raguraman

    ·Letter to John (Visa Cancellation Officer, NSW Visa Cancellation Unit, General Cancellations Network, Department of Home Affairs) from Raveendran Selvadurai (Ravi James Lawyers) (16/12/2019)

    ·Letter to John (Visa Cancellation Officer, NSW Visa Cancellation Unit, General Cancellations Network, Department of Home Affairs) from Raveendran Selvadurai (Ravi James Lawyers) (6/1/2020)

    ·Statutory Declaration of Suganiya Raguraman (6/1/2020)

    ·International Statement/Affidavit of Nadesapillai Periyannan (26/12/2019)

    ·International Statement/Affidavit of Periyannan Maheswary (28/12/2019)

    ·Cover letter/submission from Raveendran Selvadurai (Ravi James Lawyers) to the Tribunal (22/12/2020)

    ·International Affidavit of Amaravathy Thangaraj Pillai (27/12/2019)

    ·International Affidavit of P. Sumathi (2/1/2020)

    ·International Affidavit of K. Rengan (30/12/2019)

    ·Government of India identity document of Suganiya Raguraman

    ·Seethalakshmi Ramaswami (Evening) College Transfer Certificate of P. Suganiya (date of admission: 5/6/1995)

    ·Cauvery College for Women Transfer Certificate of P. Suganiya (25/5/1995)

    ·Translated Court documents, including Orders, from Tiruchirappalli Judicial Court. The translator’s certification was attached to this document

    ·Court document (in English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli

    ·Court document (in a language other than English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli

    ·Document (in a language other than English)

    ·Document (in a language other than English)

    ·Postal documents

    ·Newspaper clippings (in a language other than English)

    ·Document (in a language other than English)

    ·‘Acknowledgement of Applications – Ms Suganiya Raguraman and Ms Tanvi Raguraman’ from the Administrative Appeals Tribunal to Mr Raveendran Selvadurai (21/2/2020).

    Document List – Attachment B

    1.On 31 December 2020, the Tribunal received the following documents by post:

    ·Cover letter/submissions to Member A Dronjic from Raveendran Selvadurai (Ravi James Lawyers) (29/12/2020)

    ·Translated Court documents, including Orders, from Tiruchirappalli Judicial Court. The translator’s certification was attached to this document

    ·Court document (in English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli

    ·Court document (in a language other than English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli

    ·Document (in a language other than English)

    ·Document (in a language other than English)

    ·Postal documents

    ·Newspaper clippings (in a language other than English)

    ·Document (in a language other than English)

    ·Court Order, Judicial Magistrate No. 3 Court Tiruchirappalli, Presence: Mr. V. John Mino, BA, BL, Judicial Magistrate No. 3, Tiruchirappalli (12/09/2007)

    ·Deposition of Witness of Periyannan

    ·Statement/Affidavit of Periyannan

    ·Deposition of Witness of Periyannan

    ·Public Notice before the Judicial Magistrate No. III of Tiruchirappalli

    ·Public Notice before the Judicial Magistrate No. III of Tiruchirappalli

    ·Document sent to Mr N Periyannan from the Corporation Health Officer of Tiruchirappalli Corporation (10/7/2007)

    ·‘Vakkalatha Nama’ before the Judicial Magistrate No. III of Tiruchirappalli

    ·‘Vakkalatha Nama’ before the Judicial Magistrate No. III of Tiruchirappalli

    ·Bank document (2/8/2007).

    2.On 31 December 2020, the Tribunal received the following documents by email:

    ·Document by Municipal Administration & Water Supply Department from Dr M Yazhini M.B.B.S, D.P.H, E.I.S (City Health Officer, Tiruchirappalli) to Public Information Officer (Tiruchirappalli City Corporation, Tiruchirappalli) (29/12/2020)

    ·Document by Municipal Administration & Water Supply Department from S.N. Shanmugam (Public Information Officer and Assistant Commissioner (Per) (i/c), Tiruchirappalli City Corporation, Tiruchirappalli to Thiru. N. Periyannan (S/o Natesan, No. 22, Akila Nagar, Thiruvanaikovil, Tiruchirappalli – 5).

    ATTACHMENT C – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.